Is parliamentary debate being gagged?

As at 10 August, 737 votes had taken place in the current sitting of the House of Representatives. Only 297 were votes on actual pieces of legislation, while a staggering 440 votes  or 60% were for the suspension of standing orders or 'gag' orders to shut down debate.

Word cloud showing Closure as the largest word

This word cloud, from the APH website's divisions page, the source of our figures says it all. (Link no longer available.)

A key function of parliament house - to debate legislation - is being undermined by the over-use of gag orders. This is an abuse of parliamentary process and it must stop.

What's a gag order?

If you've listened to parliamentary sessions, you'll have heard the phrase: "I move that the member no longer be heard", followed by a vote. The Government uses this vote, under Standing Order 80, to stifle debate and prevent cross benchers from being heard. 

Shutting down debate in this way ensures that MPs are not able to fulfil their most basic duty: to represent their constituents’ interests and ensure the national interest is served through the proper debating of legislation, by eliciting information from Government and raising matters of their own concern. 

Originally intended to prevent the opposition from using delaying tactics, SO 80 is no longer required and should be abolished.

What are standing orders?

The Standing Orders are the rules that govern House of Representative procedures, made under the power granted by section 50 of the Constitution. They are made, amended and suspended by resolution of the House, and are of continuing effect - so they apply until changed by the House. 

What is SO 80 and why was it introduced?

Standing Order 80 is defined in Chapter 8: Debate, order and disorder as follows:

Closure of debate

80 Closure of a Member speaking

If a Member is speaking, other than when giving a notice of motion or moving the terms of a motion, another Member may move – 

That the Member no longer be heard

The question must be put immediately and resolved without amendment or debate.

This Standing Order was introduced in 1905 in response to the Opposition using long speeches as a tactic to delay the passage of bills.

Ironically Prime Minister Deakin (Australia’s second Prime Minister and a member of the Liberal party) said when moving for its adoption in 1905 that the “new standing order need rarely, if ever, be used for party purposes, and never, I trust, will its application be dictated by partisan motives”

Despite the Government's desire to add this closure mechanism to its procedural armoury, it was not used for the first time until 1909.

Why is it no longer relevant?

When SO 80 was introduced, there were no time limits on speeches, so long speeches could effectively be used as a delaying tactic. But in 1912, under the parliament of Prime Minister Fisher, time limits for speeches were introduced, rendering SO 80 redundant. Unless the House otherwise orders, time limits now apply to all speeches, with the exception of the main appropriation bill for the year.

Why are gag orders a problem?

Bills should go through three parliamentary 'readings' involving robust debate to ensure there has been adequate policy input and that any problematic parts of the bill have been considered and amended or removed as necessary. But recently the Government has been shutting down any debate on bills and moving straight to a third reading where bills are hastily approved without the checks and balances that were intended by the application of parliamentary process.

To quote Warringah MP Zali Steggall:

"There are a lot of games played in parliament, mostly by the Government shutting down debate, because the Government holds the majority, they get to determine who gets to speak and when. If they don’t like a motion or the direction of the debate they can vote that “the member no longer be heard” meaning they can vote that the person speaking no longer has the floor and they turn their mic off, also known as a gag order. Since I was elected, one and a half times as many votes have taken place on suspensions of standing orders and shutting down debate than on actual legislation. I vote against shutting down debate as I consider that representing the views of Warringah and debating the issues and legislation is the primary purpose of the House of Representatives."

Standing Order 80 should be abolished

It is time to stop the use of the gag order as (under this parliament in particular) it is habitually used in the way that Prime Minister Deakin feared: in a partisan way to stifle debate.

The standing order is being used far more frequently than ever envisaged and not for the purpose that was originally intended when it was introduced. It is no longer required and its abusive overuse is seriously damaging the principles of our democratic parliamentary system – the primary one being that bills are adequately debated before they proceed to final approval.

What happens in the Senate?

The Senate does not have a similar procedure to “gag” or stop a Senator from speaking. However, under the Standing Orders of the Senate, the President can warn a Senator about irrelevance or tedious repetition and direct them to discontinue their speech. The Senator can either choose to follow the President’s direction or ask that the question be decided on by a vote of the Senate. Since time limits were introduced, this has rarely occurred.

More information from the APH website